Alamo Rodriguez v. Mcs Life Ins. Co., No. 02-2358 (DRD).

• Decision Date: 17 July 2003
• Docket Number: No. 02-2358 (DRD).
• Parties: Graciano ALAMO RODRIGUEZ, et al., Plaintiffs, v. MCS LIFE INSURANCE COMPANY, et. al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

283 F.Supp.2d 459

Graciano ALAMO RODRIGUEZ, et al., Plaintiffs, v. MCS LIFE INSURANCE COMPANY, et. al., Defendants.

No. 02-2358 (DRD).

United States District Court, D. Puerto Rico.

July 17, 2003.

COPYRIGHT MATERIAL OMITTED

John Ward-Llambias, San Juan, PR, Marcos A. Rivera-Ortiz, Rio Piedras, PR, for plaintiffs.

James D. Noel-High, Ariadna Alvarez, McConnell Valdes, Carl E. Schuster, Lourdes C. Hernandez-Venegas, Schuster, Usera & Aguilo LLP, San Juan, PR, for defendants.

AMENDED OPINION AND ORDER

DOMINGUEZ, District Judge.

Pending before the Court is Defendant Philip Morris de Puerto Rico's (hereinafter referred to as "PM") Motion to Dismiss (Docket No. 13) filed on October 9, 2002 and co-defendants Kraft Foods North America, Inc., PM, Norma Rola, and Elliot Rivera's Motion to Dismiss (Docket No. 14) also filed on October 9, 2002. Defendant Philip Morris de Puerto Rico alleges in their submittal (Docket No. 13) that Plaintiff's Amended Complaint (Docket No.6) should be dismissed for failing to state a claim upon which relief can be granted. Filed on the same date, Co-defendants Kraft, PM, Norma Rola and Elliot Rivera further allege in a separate motion (Docket No.14) that the state law claims should be dismissed since they are preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. ("ERISA").

On November 14, 2002, the Court referred these two motions to Magistrate Judge Justo Arenas for a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B); FED.R.CIV. P. 72(b); and Local Rule 503. (Docket No. 17). The Magistrate filed a Report and Recommendation ("R & R") on December 4, 2002 (Docket No. 19). In the report, the Magistrate recommended that both Motions to Dismiss filed by co-defendants (Philip Morris de Puerto Rico, Kraft, PM, Norma Rola and Elliot Rivera) (Dockets 13 & 14) be considered unopposed and granted. Plaintiffs filed an opposition to the R & R, on December 30, 2002 (Docket No. 20) and is considered untimely.¹ As such, the Magistrate's R & R, Defendant Philip Morris de Puerto Rico's Motion to Dismiss (Docket No. 13), and co-defendants Kraft Foods North America, Inc., Philip Morris de Puerto Rico, Norma Rola and Elliot Rivera's Motion to Dismiss (Docket No. 14) are all considered unopposed. Notwithstanding, the Court reviews the Report and Recommendation and for the reasons set forth below, Defendants' motions to dismiss are GRANTED.

BACKGROUND

Plaintiffs filed this complaint under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, and Article 1802 of the Puerto Rico Civil Code, 31 P.R. Laws Ann. § 5141. Pursuant to the allegations of the complaint, Plaintiffs have been employees of co-defendant Life Savers, Inc., and some of the Plaintiffs were employees of R.J. Reynolds, Squibb, Nabisco, etc., as such they had obtained benefits granted by disability insurance contracts with different carriers: Transamerica, Cigna, Prudential, Actna (sic) and MCS. In 1999 Life Savers, Inc. contracted the services of MCS to administer the Long Term Disability Plan (LTD). Plaintiffs then experienced serious problems in relation to their health condition and with "unreasonable, capricious and intentional" exigencies which co-defendant MCS imposed to maintain in effect the disability benefits then enjoyed by the Plaintiff employer. Plaintiffs further allege that they have been reasonably complying with the rules and directives imposed upon them, and that they are disabled individuals with no other alternatives that may guarantee them other means of income. Defendants have acted in a premeditated manner, maintaining Plaintiffs in a state of ignorance and uncertainty as to the benefits and guarantees of the policies. Plaintiffs further allege they have never been certain as to the benefits they are entitled to, and at times some receive benefits while others do not, creating disparity in the application of the LTD plan.

The complaint also alleges that co-defendant MCS has been harassing, persecuting and disrupting the emotional tranquility of the Plaintiffs with the sole purpose of eliminating entitled benefits acquired by virtue of the LTD Plan. Co-defendants Norma Rola and Elliot Rivera allegedly plotted with the Retirement Plan Administration to plan and execute the above referred scheme. Plaintiffs in the allegations of the complaint further aver, that their state of insecurity, fear and apprehension is a product of the intentional and/or negligent acts of the Defendants with the sole purpose of denying Plaintiffs the benefits they are entitled to as beneficiaries of the Disability Plan. As a result, Plaintiffs have "sunken to a state of humiliation and depression that psychologically affects their social and family life." As reparation for the suffering and mental anguish, Plaintiffs claim that they are entitled to an estimated amount of $150,000.00 for each Plaintiff for a total of $9,000,000.00.

REPORT AND RECOMMENDATION

Plaintiffs failed to timely oppose the Magistrate's Report and Recommendation granting the Motions to Dismiss presented by co-defendants, thus the Court considers the Report and Recommendation submitted as unopposed. An adversely affected party may contest the Magistrate's report and recommendation by filing its objections within ten (10) days after being served a copy thereof. See Local Rule 510.2(A); Fed.R.Civ.P. 72(b). Furthermore, the Federal Magistrates Act provides:

The magistrate shall file his proposed findings and recommendations . . . with the court and a copy shall forthwith be mailed to all parties. Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.

28 U.S.C. § 636(b)(1)(C).

"A party `may' file objections within ten days or he may not, as he chooses, but he `shall' do so if he wishes further consideration". Negron v. Celebrity Cruises, 316 F.3d 60, 61 (1st Cir.2003) quoting Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980). "Absent objection by the plaintiffs, [a] district court ha[s] a right to assume that [a party] agree[s] to the magistrate's recommendation." Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, "[f]ailure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objection are precluded on appeal." Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). See also Sands v. Ridefilm Corp., 212 F.3d 657, 663 (1st Cir.2000); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in magistrate's recommendation, as well as magistrate's failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that "[o]bjection to a magistrate's report preserves only those objections that are specified"); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, "however he was not entitled to a de novo review of an argument never raised"). See generally United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, 616 F.2d at 605.

The Report and Recommendation was filed on December 4, 2002. The 10 days expired on December 18, 2002. Plaintiffs filed their opposition on December 30, 2002. The objections to the R & R were clearly filed outside of the time period provided. Thus, the Court need only satisfy itself that there is no plain error on the face of the record in order to accept the unopposed Magistrate's Report and Recommendation. See Douglass v. United Servs. Auto, Ass'n, 79 F.3d 1415, 1419 (5th Cir.1996)(en banc)(extending the deferential "plain error" standard of review to the unobjected to legal conclusions of a magistrate judge); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982)(en banc)(appeal from district court's acceptance of unobjected findings of magistrate judge reviewed for "plain error"); Nogueras-Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001)("Court reviews [unopposed] Magistrate's Report and Recommendation to ascertain whether or not the Magistrate's recommendation was clearly erroneous")(adopting the Advisory Committee note regarding FED.R.CIV.P. 72(b)); Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa.1990)("when no objections are filed, the district court need only review the record for plain error").

MOTION TO DISMISS STANDARD

Rule 12(b)(6) of the Federal Rule of Civil Procedure provides that a Defendant may, in response to an initial pleading, file a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) the Court must accept as true all well-pleaded factual claims, and indulge all reasonable inferences in Plaintiffs' favor. Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir.1996). Dismissal under Federal Rule of Civil Procedure 12(b)(6) is appropriate if the facts alleged, taken as true, do not justify any recovery, under any theory of law. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). In order to survive a motion to dismiss, Plaintiff must set forth "factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery." Gooley v. Mobil Oil Corp. 851 F.2d 513, 515 (1st Cir.1988).

Although all inferences must be made in Plaintiffs' favor, the Court need not accept "bald assertions, unsupportable conclusions, periphrastic...